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Civil Judicial Cooperation Report Review of the Balance of Competences between the United Kingdom and the European Union Civil Judicial Cooperation February 2014 Review of the Balance of Competences between the United Kingdom and the European Union Civil Judicial Cooperation © Crown copyright 2014 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/ doc/open-government-licence/ or e-mail: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at [email protected]. This document is also available from our website https://gcn.civilservice.gov.uk/ Contents Executive Summary 5 Introduction 11 Chapter 1 The Historical Development of EU Competence in Civil Judicial Cooperation 15 Chapter 2 The Current State of Competence 21 Chapter 3 Impact on the National Interest – A Summary of Responses 37 Chapter 4 Future Options and Challenges 57 Annex A Submissions to the Call for Evidence 63 Annex B Engagement Events 65 Annex C Overview of Legislation and Opt-In 68 Executive Summary This report examines the balance of competences between the European Union (EU) and the United Kingdom (UK) in the area of civil judicial cooperation, and is led by the Ministry of Justice. It is a reflection and analysis of the evidence submitted by experts, non-governmental organisations, businesspeople, Members of Parliament and other interested parties, either in writing or orally, as well as a literature review of relevant material. Where appropriate, the report sets out the current position agreed within the Coalition Government for handling this policy area in the EU. It does not predetermine or prejudge proposals that either Coalition party may make in the future for changes to the EU or about the appropriate balance of competences. Civil judicial cooperation refers to the way cross-border legal disputes in the areas of civil, commercial and family law can be considered and resolved through the judicial system and methods of alternative dispute resolution such as mediation. By comparison to some reports published in this semester, the Ministry of Justice received fewer written responses to its Call for Evidence. However, we are pleased with the 34 responses we received. EU civil judicial cooperation is not a term widely recognised or understood except by those who specialise in cross-border civil and family matters or those members of the public who have been involved in such a dispute. This report was informed not only by the written evidence received, but also by the evidence collected in our wider stakeholder events. Over 90 stakeholders attended workshops held in London, Brussels and Edinburgh, and stakeholder meetings. As a result a range of stakeholders participated in our Call for Evidence including legal practitioners, academics, the judiciary, legal professional bodies, organisations such as Resolution, Members of the UK and European Parliaments and individuals. The majority of responses came from the legal and academic sectors rather than the business sector, although business organisations were invited to participate. Many of the legal practitioners who participated in the Call for Evidence represented businesses, including those involved in cross-border trade, and stated specifically that they were able to discuss how the EU measures had impacted on their clients. In the area of family law, although some individual responses were received, the majority of evidence was provided by family practitioners and organisations like Reunite which some families turn to for help when a cross-border dispute arises. Participants made a number of assertions about the EU legislation in this field but did not necessarily provide statistics or data to support those assertions. By its nature it is not easy to obtain comprehensive statistics on the work in this area because we will not know how many UK citizens and businesses have sought redress using the different EU legislative measures 6 Review of the Balance of Competences between the United Kingdom and the European Union: Civil Judicial Cooperation discussed in Chapter 2 in the courts of different Member States. Where data is available, it is usually in respect of individual EU legislative measures as recorded in our courts or surveys, examples of which are provided in Chapter 3. Chapter one sets out the development of EU competence in this area. Prior to EU legislation, cross-border cooperation in this area was achieved through a network of agreements between Member States. The EU first gained legislative powers in civil judicial cooperation matters as a result of the 1997 Treaty of Amsterdam. When the Treaty was agreed, the UK and Ireland negotiated a Protocol which provided that no EU legislative measures in this area, and other fields, would apply to the UK or Ireland unless they expressly opted in to the proposal or legislation. Chapter two sets out the current EU competence in this field which now derives from the 2009 Treaty of Lisbon (the Treaty on the Functioning of the European Union (TFEU)). Under Article 81 of TFEU, the EU is expected to develop judicial cooperation in civil and commercial matters (including family law) with cross-border implications, ‘particularly when necessary for the proper functioning of the internal market’. The UK and Ireland’s opt-in power continues, so that no measures adopted under this Article apply to the UK or Ireland unless they expressly opt in. The Chapter also describes the main legislative measures adopted by the EU in this field and whether the UK has opted in to those measures. It also notes those areas where the UK disagrees with the EU’s assertion of competence. Chapter three explores the impact of EU civil judicial cooperation measures, including discussion about what the measures do, the role they play in the functioning of the Single Market, the UK’s use of the opt-in and the EU’s role on the international stage. This is based on the views of respondents to the Call for Evidence; it is not possible to back it up with data or statistics. • The impact of the EU measures in civil and family law matters. 18 respondents, and participants at workshops, stated that the EU measures, which the UK has opted in to, are advantageous for UK citizens and businesses. This is seen to be as a result of the UK’s negotiation of certain aspects of the instruments in conjunction with its use of the opt-in and more generally the use the UK has made of the opt-in provisions. A number said that the EU measures adopted by the UK were an improvement on the previous system of intergovernmental cooperation. Others disagreed. Respondents also said that the EU measures provided certainty over how disputes would be resolved and helped UK citizens and businesses by setting out rules about which court will have jurisdiction in a dispute, which country’s law will apply and for the mutual recognition and enforcement of judgments. Respondents did, however, consider that improvements could be made to some of the existing instruments, and suggested ways in which this could be done when the opportunity arises. The role and rulings of the Court of Justice of the European Union (the ECJ) were also discussed. Whilst it was recognised that there is the need for such a court to interpret the EU instruments and to ensure Member States comply with these instruments, some respondents said that its rulings in commercial matters had caused practical problems, although they did note that some of these problems have been addressed by recent changes to the Brussels I Regulation. The impact of the EU measures on the UK’s role as a leading international centre for legal excellence was raised in the responses received, with a number of respondents from the legal sector stating that they did not impact adversely on the UK’s role. • The role of civil judicial cooperation in the Single Market. Respondents said that the EU measures in this field provided certainty over how disputes will be handled in Member States and that this supported and encouraged cross-border trade and Executive Summary 7 the free movement of persons. Some respondents stated that some of the access to justice measures introduced by the EU, such as the European Small Claims Procedure, were not well known or used and greater awareness might assist the smooth functioning of the Single Market. • The use of the opt-in in civil judicial cooperation matters. Respondents stated that the UK opt-in in civil matters was seen as important in maintaining the integrity of the UK’s legal systems, since it allowed the UK to stand aside from any instrument proposed under Article 81, the content of which did not appear to benefit the UK or was not compatible with the UK’s legal systems. 17 respondents, and participants at workshops, said they supported the way in which the UK had used its opt-in to date. However, there was some debate about when the UK should opt in to a measure; some wanted the UK to opt in to a measure when it was first proposed, while others wanted the UK to wait and opt in after negotiations had been concluded. Some respondents expressed concern that the use of the opt-in may diminish the UK’s influence in the negotiation of future civil and family law measures and must therefore be used carefully. • International Issues. There were mixed views about the EU’s competence to act in international matters.
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